GUANTÁNAMO DETAINEES: THE "OTHER" VICTIMS OF 9-11

On September 11, 2012, as the nation remembered those who lost their lives in the horrific and senseless attacks of 9-11, the government released information about the death of Guantánamo detainee Adnan Farhan Abdul Latif. His story exemplifies how many of the detainees are also victims, not of terrorism, but of the war on terror.

As a result of the Bush administration's overreaction to the actions of a small terrorist network, 787 men have been detained at Guantánamo Bay since it opened in January 2002—only a handful with any connection to the attacks on September 11, 2001. Many detainees, including several later proven to be innocent, have been subjected to torture. Most were subjected at least to inhumanity and abuse, especially during the early years when our government did not recognize that the Geneva Convention requirements of humane treatment applied to detainees. Of the over 600 detainees released, none have ever received compensation of any kind from the US government, or even so much as an apology or acknowledgment that they were wrongfully imprisoned.

One hundred and sixty-seven men remain imprisoned at Guanténamo today, and many have been held for over a decade. Based on an exhaustive review by the Guantánamo Review Task Force and the results of the handful of completed detainee prosecutions, fewer than 100 of the 787 detainees could ever be legitimately characterized as terrorists, war criminals or persons who pose a serious threat to our security. Sadly, nine detainees have now died in captivity at Guantánamo, either of natural causes or by committing suicide. Perhaps none of these deaths is more tragic than Latif's.

A Yemeni captured at the Afghanistan-Pakistan border in December 2001, Latif was one of the first detainees to be brought to Guantánamo. Recognizing the lack of evidence supporting his detention, he was recommended for release in December 2006 and again in January 2008 under the Bush administration. He was again cleared for release by President Barack Obama's detainee task force in 2009. But due to unstable conditions in Yemen, neither administration was willing to send him home. In 2010, he was granted a writ of habeas corpus and ordered released by US District Court Judge Judge Henry H. Kennedy Jr. Although the Obama administration had already cleared Latif for release, the US Department of Justice inexplicably appealed this ruling. The resulting 2-1 ruling by the US Court of Appeals for the DC Circuit reversing the trial judge created a new, highly deferential standard of review in habeas cases that essentially shifted the burden of proof from the government to the detainee and largely eviscerated the hard-earned right tohabeas corpus recognized by the US Supreme Court in Boumediene v. Bush. Understandably, after years in Guantánamo, Latif suffered from depression. At times, he was placed on suicide watch in the prison's psych ward. At other times, he was on hunger strike. According to his lawyer, the heroic David Remes, having had his hopes of release repeatedly dashed, Latif had essentially lost the will to live.

More than half of the 167 detainees remaining at Guantánamo do not belong there. There are about 55 detainees fully cleared for transfer from Guantánamo, men who have been determined to pose no threat to the US. Some have even won writs of habeas corpus. Another 30 Yemeni detainees, considered to pose minimal threat, have been "conditionally" cleared for release. Why is the US still holding scores of innocent men and low-level foot soldiers?

While the Obama administration is partially responsible, the US Congress largely deserves the blame. Since the summer of 2009—in a clear effort to thwart Obama's stated goal of closing Guantánamo—Congress has passed a series of increasingly stringent spending restrictions which have made it virtually impossible to transfer most detainees out of Guantánamo. For example, Congress has restricted the transfer of detainees to any country that does not meet a strict set of domestic security, intelligence-sharing and counterterrorism criteria, a provision which US Department of Defense General Counsel Jeh Johnson has described as "onerous and near impossible to satisfy." Congress has also precluded any detainee from being transferred to the US for any reason, even to face federal criminal charges. This restriction has also precluded the possibility of resettling some innocent detainees in the US—a concept once promoted by the current administration which would have made it far easier to convince friendly countries (which could meet the transfer criteria) to accept additional detainees for resettlement. These restrictions have been justified by irrational fear-mongering about releasing terrorists into the US and exaggerated claims of former detainee recidivism. As a result of these legislative restrictions, only three detainees were released in 2011 and one in 2012. In contrast, the Bush administration released an average of 75 detainees per year when no such restrictions were in place. That is why, in a forthcoming law review article, I refer to these detainees as "Prisoners of Congress."

One of the axioms of American justice is that it is better to let 100 guilty men go free than to imprison a single innocent man. With regard to detainees, Congress seems to have turned that axiom on its head—it is better that 100 innocent detainees be imprisoned, than to release one detainee who might turn out to pose a threat. The president has repeatedly threatened to veto these unreasonable restrictions, but has yet to carry out this threat, allowing his hands to be tied on detainee policy. It does no honor to the victims of 9-11, or to the brave servicemembers who have fought and died in the decade-long war against terrorism, to allow innocent men to be imprisoned because of political expediency or indifference. It certainly does not make us safer. Whoever the next president is, he should veto any legislation which limits his ability to transfer cleared detainees and immediately repatriate or resettle them. We would never allow innocent Americans to be imprisoned in a foreign country for years on end. We should not countenance detaining innocent foreigners in Guantánamo.

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David Frakt is a Visiting Professor at the University of Pittsburgh School of Law and a Lieutenant Colonel in the US Air Force Reserve JAG Corps. He previously represented Guantánamo detainees before the US military commissions and in a habeas corpus proceeding.